United States District Court, N.D. New York
DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiff Loren Sullivan commenced the instant action against WSWHE Boces asserting claims pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and 42 U.S.C. § 1983. Presently before the Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) and (6).
Plaintiff Loren Sullivan suffers from Tourette Syndrome. In 2007, Plaintiff was hired by Defendant WSWHE BOCES to teach special education social studies to high school students. In December 2007, Plaintiff received an offer to work full time as a history teacher working with troubled students in the Alternative High School. In June 2009, Plaintiff was informed that his position was being eliminated. Plaintiff learned that a new position was being created at the school which was comprised of half day GED for alternative students and half day GED for special education. Plaintiff applied for the position, but did not receive the job. Plaintiff claims that the position was given to a lesser qualified, lesser experienced, non disabled individual.
Thereafter, Plaintiff applied for, and was awarded, a GED teaching position at the F. Donald Byers Center of BOCES in Saratoga Springs, New York. In 2010, Plaintiff was informed that his position was being eliminated.
In September 2010, Plaintiff began working at Hudson Falls Intermediate School teaching special education to elementary students. The school principal, Robert Cook, is purported to have stated that he did not want Plaintiff working at the school and to have also threatened to put a letter in Plaintiff's personnel file "every day so [he could] find a way to fire [plaintiff]." Compl. at ¶ 29. Plaintiff resigned from his position in December 2010.
In January 2011, Plaintiff was contacted by Defendant's Human Resources Representative, Donna Wisenburn, and informed that there was an open position for him at the Myers Center where he previously taught. The position was not full time and was offered a salary at a 60% rate. Plaintiff accepted the position.
Plaintiff commenced working at the Myers Center on January 20, 2011. He noticed that his work environment had changed. Co-workers would regularly make comments and joke about his disability. The principal, Sean Hunziker, did not reprimand the co-workers for their actions, but, rather, "laugh[ed] along in amusement directly in front of [Plaintiff]." Compl. at ¶ 32. Plaintiff also was informed he would not get any credit toward his tenure area while working at the Myers Center. Hunziker further advised Plaintiff that all of the work he had submitted as part of the tenure process was lost'" and would have to be re-created. Id. at ¶ 9. Hunziker also issued several reprimands to Plaintiff. In February 2011, Hunziker questioned Plaintiff why his teaching plans were not the same as they were in the beginning of the year despite the fact that Plaintiff did not teach at the Myers Center at the beginning of the year. On several occasions, Hunziker yelled at Plaintiff in the hallway in front of teachers and students. Hunziker also is alleged to have ignored Plaintiff's complaint about a classroom safety issue. Hunziker is further claimed to have unfairly criticized Plaintiff's teaching methods.
In June 2011, Plaintiff's job was again eliminated. The position was reinstated in September 2011, but Plaintiff was not contacted concerning the opening. The course is currently being taught by a non-disabled employee with less seniority and experience than Plaintiff.
Based on the foregoing, Plaintiff commenced the instant action asserting claims for violation of his rights as protected by the Equal Protection Clause and violations of the Americans with Disabilities Act.
Presently before the Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12 on the grounds of: (1) insufficient service of process; (2) lack of personal jurisdiction; and (3) failure to state a claim upon which relief can be granted.
a. Service of Process
Defendant first moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) claiming that the summons was deficient in that it did not identify this Court as the place where the action is pending, but, rather, named a state court in Washington County; the summons is not signed by the clerk; and the summons does not bear the court seal. Defendant further contends that service is deficient in that the summons was not signed by an attorney ...